Dharmaśāstra and the legal personality of deities in the Ayodhya verdicts (2010 & 2019)

ABSTRACT

This article explores how Hindu deities and places of worship are understood as legal persons in the Supreme Court of India’s (2019) and the Allahabad High Court’s (2014) verdicts concerning the ‘Ayodhya Dispute’ – M. Siddiq v. Suresh Das. It discusses the Courts’ interpretations of a specific Sanskrit maxim attributed to the sixteenth Century Sanskrit jurist, Raghunandana Bhaṭṭācārya, in the specific context of their distinction between the juridical personality of the deities Rām Lalla Virajman (the infant form of Rāma worshipped at the Babri Masjid/Ram Janmabhumi site) and Asthan Rām Janmabhūmi (the deification of the contested site itself). The Allahabad High Court invoked Raghunandana to justify a faith-based application of Sanskrit jurisprudence (Dharmaśāstra) to expand the Hindu community’s constitutionally-protected rights to freedom of religion into a legal weapon with which to assert control over India’s contested geography. The Supreme Court, however, rejected this majoritarian ‘Trojan Horse’ by reframing Raghunandana’s maxim – as cited in a body of judicial precedent – to support the legal personality of Rām Virajman merely as the pious purpose of worship at Ayodhya. Legal debates about the juristic personality of Hindu deities are inseparable, I argue, from determinations about the ownership of some hotly-contested religious sites in India.

KEYWORDS:

• Ayodhya
• Babri Masjid
• Dharmaśāstra
• Supreme Court of India
• Raghunandana Bhaṭṭācārya
• Allahabad High Court

1. Introduction: where angels fear to tread

On November 9th, 2019, a constitutional bench of the Supreme Court of India delivered a unanimous, 1045-page verdict in M. Siddiq v. Suresh Das, a series of appeals of a 2010 judgment from the Allahabad High Court, in the case of Gopal Singh Visharad and Ors v. Zahoor Ahmad and Ors.¹ The case concerned:

a dispute between two religious communities … over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims. The Hindu community claims it as the birthplace of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claim it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur … [which] existed at the site until 6 December 1992 … . the Hindus refer to the disputed site as Ram Janmabhumi … (i.e., [the] birthplace of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished … by Mughal Emperor Babur … Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.²

The Supreme Court overturned the 2010 Allahabad High Court’s verdict – one that had trifurcated the ownership of the disputed site – and awarded the entire property to a divine litigant: Rām Virajman – an infant form of Rāma, the tutelary deity of the Rām Janmabhūmi. The Court ordered the Central Government to establish a trust to take possession of Rām’s property (from government receivership) and to construct a temple dedicated to (and owned by) the juridical person, Rām Virajman.³ The Shri Ram Janmabhoomi Teerth Kshetra, was formed on 5, February, 2020, and controls approximately 70 acres in Ayodhya. Kesava Parasaran, the lead advocate for Rām Virajman was appointed as the first chairman. On 5th August, 2020, Narendra Modi laid the cornerstone of the Rām Janmabhumi Mandir. The Court recognized that ‘the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992 … through means which should not have been employed in a secular nation committed to the rule of law.’⁴ Consequently, the Court employed its equitable jurisdiction under Article 142 of the Indian Constitution ‘to provide restitution to the Muslim community for the unlawful destruction of their place of worship … ’ namely, that ‘5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya.’⁵

The Supreme Court’s verdict brought closure to legal proceedings that had run, off and on, from 1885 and to a concomitant inter-communal dispute that one might compare, productively, with the dispute over the Temple Mount in Jerusalem (Friedland and Hecht 1998; Parikh 2005 ; Pollock 1993; van der Veer 1994).⁶ In 1885, Raghubar Das, ‘claiming to be the Mahant of Ram Janmasthan’ filed a suit before the sub-judge of Faizabad, seeking to build a permanent temple on the Ram Chabutra. In response, Mohd Asghar, the Mutawalli of the Mosque, was made a party to the suit and ‘set up a plea that the mosque was constructed by Babur [in 1528 and] … that ownership could not be claimed by the plaintiff [Das] who had not produced any material originating in … the ruler of the time in support of the plea.’ The court refused Das’ suit, as ‘granting permission to construct [a] temple would amount to laying down foundation of riot between the two communities.’ A veritable ocean of ink (and blood) was spilled over the Ayodhya dispute since the instigation of modern current judicial proceedings in 1949. Although the 2010 judgment of the Allahabad High Court received scholarly attention – particularly in relation to the suit of Rām Virajman and the Sanskrit jurisprudential theories that undergird it – the intricacies of the 2019 Supreme Court verdict have not yet received similar analysis (Bindal 2020; Chandra 2010; Kapur 2014; Mathew 2020; Rai, Choudhury, and Snigdha Kantamneni 2020; Ramnath 2011).⁷ My contribution to the present special issue of Contemporary South Asia attempts to fill this lacuna.

I examine two relatively under-explored questions from the Allahabad High Court and Supreme Court of India’s judgments: (1) who (or what) are Rām Virajman and Asthan Janmabhūmi (the two plaintiff deities in original suit no. 5 of 1989) at the disputed site; and (2) what proprietary rights over the disputed site do the deities and their fiduciary guardians enjoy? I demonstrate that both issues are intimately linked: juridical construction of Rāma – as the disputed land itself, as a constitutionally protected right for Hindus to worship Rāma at his ostensible birthplace, or as an easementary right for Hindus to access land owned by the Muslim community – cannot be separated from determinations concerning the ownership of the contested site. In their analysis of Rāma’s personality in relation to the contested geography of Ayodhya, the courts evaluated two related – and sometimes contradictory – strands of jurisprudence: (1) the Anglo-Hindu law of Equity and Trusts (which established the doctrine and details of the legal personality of Hindu deities); and (2) contemporary, post-colonial constitutional law concerning the freedom of religion.

Specifically, I compare the Supreme Court and Allahabad High Court’s rulings vis-à-vis the application of a particularly influential Sanskrit legal maxim attributed to Raghunandana Bhaṭṭācārya (sixteenth Century, Bengal) to the aforementioned broader juridical debates. During the colonial period, British and Indian jurists drew on an idiosyncratic mélange of Sanskrit jurisprudential (Dharmaśāstric) maxims and English principles of Equity and Trusts to construct a comprehensive (if somewhat unwieldly) jurisprudence of Hindu divine endowments.⁸ The role of Dharmaśāstric maxims in colonial and contemporary Indian law (and, indeed, the role of legal maxims in Anglo-American judicial reasoning) is contentious. As Lariviere (1989) notes:

even though the office of paṇḍita … has long been abolished from the courts and the very training of modern paṇḍitas has become rare, the texts of the dharmasastra tradition continue to be used in a very ‘panditic’ fashion by the courts of modern India. The justices function as paṇḍitas, and the texts they cite are mere window dressing for the interpretations of Hindu law they seek to promulgate.⁹

Donald Davis (2020) attributes this perspective, in no small part, to Karl Llewellyn (1959), noting that,

Llewellyn may be credited (or blamed) for making maxims disreputable in most current legal discourse … Though the word ‘maxim’ does not appear in the essay … for Llewellyn, maxims or canons are mere strategic ornaments on decisions arrived at by other means.¹⁰

My article builds off of C.J. Fuller’s (1988) apt observation, pace Davis and Lariviere, that as a result of the advent of the Constitution of India, Dharmaśāstric interpretation – including the maxims analysed in this paper – have taken on legal significance beyond mere ‘window dressing.’ For Fuller:

not infrequently, modern India's judges have been likened to traditional pandits, and … the logic of their judgments … reveal a real continuity with the modes of reasoning of traditional pandits, even though these judgments are delivered in modern courts to settle disputes that, in most instances, could never have arisen before the 1950 Constitution.¹¹

A core feature of Fuller’s argument is the development of the ‘essential practices’ test whereby the courts determine which, if any, aspects of a religious practice are afforded protection under article 25(1) of the Constitution of India.¹²

Hindu deities are legal persons who represent the idealized purpose of pious worship by their devotees. They own property, but only in a legal sense. They require fiduciary guardians to act on their behalf and, when their guardians break their relationship of trust with the deity, other worshippers can file suit on the deity’s behalf (Derrett 1963b; Dhavan 1978; Mukherjea 2016).¹³ During the post-colonial period, India’s courts re-examined the principles and precedents of Anglo-Hindu law against the backdrop of the Constitution of India – especially Articles 25 and 26, which guarantee the right to worship and to endow and maintain religious institutions, respectively (Das Acevedo 2016a).¹⁴ Even though Dharmaśāstric maxims may not carry the force of positive law – although they provide evidence of legally protected religious beliefs and practices – they nevertheless serve as a point of reference for jurists tasked with adjudicating disputes involving Hindu jurisprudence. Legal debates concerning the operation of modern Hindu law invariably involve, I argue, appeals – direct or indirect – to many of the Sanskrit maxims on whose selective application the colonial (and modern) Hindu legal precedent is based.

Juridically, a key question for both courts in the Ayodhya dispute was: if Dharmaśāstric maxims serve as a focal point for delineating the boundaries of Hindus’ constitutionally protected religious freedoms, how far can those maxims (and freedoms) be extended when they conflict with the practical operation of civil law? Two justices of the Allahabad High Court argued, using a pugnacious series of Dharmaśāstric maxims to buttress an extraordinary expansion of Hindu religious freedoms, that, against the grain of established judicial precedent, the court must recognize the plaintiff deities, Rām Virajman and Rām Asthan Janmabhūmi (the land itself) as legal persons who were wholly and permanently immune to dispossession.¹⁵ In this view, the Hindu community’s constitutional religious rights entailed bringing case law into alignment with Dharmaśāstra and, therefore, justified a juridical view of Rāma as the holder of inalienable proprietary rights over the contested geography of Ayodhya.¹⁶

The Supreme Court, however, rejected much of the Allahabad High Court’s assertive, Dharmaśāstra-supported reasoning, noting that the juristic personality of Hindu deities ‘cannot be ‘evolved’ into a trojan horse that permits, on the basis of religious faith and belief, the extinguishing of all competing proprietary claims over property.’¹⁷ The Supreme Court reined in the lower court’s novel reasoning, arguing that religious belief cannot trump the operation of secular law. Ironically, though, the secular legal precedents that the Supreme Court employed to defend the legal personality of Rām Virajman and to reject the legal personality of Asthan Rām Janmabhūmi, also utilized Dharmaśāstric maxims such as that of Raghunandana to support their view of the legal personality of Hindu deities. In short, those justices who expanded or constrained Hindu majoritarian claims to Ayodhya did so largely through discussions of divine legal personality which, in turn, entailed debates concerning the legal implications of Dharmaśāstric statements.

The Supreme Court projected the jurisprudence of the legal personality of Hindu deities onto the facts of the Ayodhya dispute, recognizing Rām Virajman as a juridical person because he ‘has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent any express dedication or trust.’¹⁸ Once deified as Rām Virajman – and afforded the legal vestments of a religious endowment under Articles 25 & 26 – the Supreme Court produced an historical narrative in which the State, since the British annexation of Oudh in 1856, protected the Hindu community’s idealized religious purpose of worship at Ayodhya – even when the Muslim community was dispossessed illegally. This positive state guardianship, coupled with the Nirmohi Akhara’s (the ostensible guardians of the images of Rām Virajman at Ayodhya) hostile mala fide breach of trust with their deity enabled the court to hear Rāma’s case and to recognize his greater possessory right to the contested site.¹⁹

Broadly, both courts chart the relationship between the jurisprudence of Hindu deities and Hindu majoritarian claims to a specific piece of sacred geography. The jurisprudential fulcrum for navigating this relationship, I argue, is a series of Sanskrit maxims – especially Raghunandana’s – that have, and will, serve as a touchstone for juridical thought on the boundaries of what counts as a Hindu deity. Both courts’ reasoning appears in Hindu legal claimants’ ongoing suits regarding the Kṛṣṇajanmasthan Temple Complex in Mathurā and the Jñān Vāpi Mosque/Kāśīviśvanātha Temple in Vārāṇasī, where the Supreme Court’s invocation of the Places of Worship Act, 1991 as a guarantee that ‘that history and its wrongs shall not be used as instruments to oppress the present and the future’ is being put to the test by litigants employing Dharmaśāstric reasoning, under the guise of secular freedoms of religion.²⁰

2. Raghunandana Bhaṭṭācārya and the juristic personality of Hindu deities in the Ayodhya dispute

It is for the benefit of the worshippers that there is the conception of images of the Supreme Being which is bodiless, has no attribute, which consists of pure spirit and has got no second.

– Raghunandana Bhaṭṭācārya, Devapratiṣṭhātattva (sixteenth Century, Bengal).²¹

Raghunandana’s maxim is representative of a much broader trend amongst Purāṇic and Dharmaśāstric writers to provide a metaphysical justification for image worship (Granoff 2006).²²

This maxim (and others like it) entered India’s legal record during the colonial period and became the standard point of reference for two propositions: (1) that the law could recognize a wide variety of entities as legal persons – provided that they are the subject of worship by Hindu devotees; and (2) that these legal persons constitute the pious purpose of worship by the deities’ devotees (Birla 2009; Fleming 2020).²³ The most influential example of Raghunandana’s maxim being invoked by the courts is Bhupati Nath Smrititirtha v Ram Lal Maitra (1909), where Justice Mookerjee, in defending a deathbed bequest to a deity whose idol was not in existence at the time of the bequest, argued that:

reliance has been placed upon … Raghunandan: It is for the benefit of the worshippers or devotees that there is manifestation … of the supreme being, which is bodiless, which has no attribute, which consists of pure spirit, and which is without a second being … . From this point of view … the position of the appellant may be undoubtedly supported.²⁴

In the Ayodhya dispute, Suit 5 of 1989 featured two plaintiffs, Rām Lalla Virajman (Rāma as an infant) and Asthan Rām Janmabhūmi (the contested site itself). While the majority opinion of the Allahabad High Court accepted the juridical personality of both deities, the Supreme Court recognized only Rām Virajman. One difference of opinion between the Courts lay in a question concerning the extent to which Raghunandana’s maxim – on its own or as enshrined in judicial precedent – could validate, on constitutional grounds, judicial recognition of a near-limitless array of phenomena as Hindu deities (and legal persons).²⁵ Does mere belief on the part of the Hindu community require the courts to infer the existence of a deity even in the absence of a formal deed of endowment or temple? Can a mere belief deify land – and thereby immunize it from civil legal claims?

2.1. Raghunandana run Rampant: Asthan Rām Janmabhūmi (Plaintiff 2)

The spectre of Raghunandana’s verse on the imagined form of formless deities (for the benefit of their devotees) haunts not only the plea of the second plaintiff in suit 5 of 1989, but also the case law invoked in support of it. If, as much judicial precedent and Dharmaśāstra suggest, the belief of Hindu devotees in the existence of a deity is sufficient for judicial recognition of that deity, could collective Hindu belief transform the Janmabhūmi land into a deity and, thereby, supplant any claim from Muslim parties over this and other sites? In essence, this would enable majoritarian land-grabs through the ostensibly secular mechanism of the judiciary.

The plaint in Suit 5 (cited verbatim in Sharma’s 2010 judgment) cites Raghunandana implicitly:

20. The place itself … the ASTHAN SRI RAMA JANMA BHUMI … has been an object of worship … as it personifies the spirit of the Divine worshipped in the form of SRI RAMA LALA or Lord RAMA the child. The Asthan was thus Deified and has had a juridical personality of its own even before the construction of a Temple building or the installation of the idol of Bhagwan Sri Rama … 

21 … . The Hindus … worship the Divine, which has no quality or shape or form, but can be known only when it manifests ITSELF in the form of an incarnation … It is the SPIRIT of the DIVINE which is worshipped by most Hindus, and not its material form or shape in an idol … . The SPIRIT of the DIVINE is indestructible and ever remains present everywhere at all times for anyone to invoke it in any shape or form … ²⁶

In the eyes of the Supreme Court, the essence of this argument is that, ‘The faith of the devotees regards the land as a deity and prayer is offered to it … Hence … the plaintiffs in Suit 5 submit that this court must confer juristic personality on the land represented as Ram Janmasthan.’²⁷ Rāma’s counsel’s assertion that ‘God is shapeless and formless and there is no requirement that the object of worship be an idol’ is a representative example of the almost-ubiquitous invocation (implicit or explicit) of Raghunandana’s maxim when discussing what sorts of Hindu religious entities can be afforded legal personality by the courts.²⁸ Taken to its logical extreme, Raghunandana’s proposition (as read juridically) could potentially force the courts to recognize a vast array of phenomena (such as rivers and land) as Hindu deities (and legal persons). In front of the Supreme Court, the counsel for Rām relied on Raghunandana, as quoted in Ram Jankijee Deities v State of Bihar, that ‘the image simply gives a name and form to the formless God and the orthodox Hindu idea is that conception of form is only for the benefit of the worshipper and nothing else’ to aver that ‘any method of consecration chosen by the devotees is adequate for the conferral of legal personality on the deity.’²⁹

In their verdicts, Agarwal and Sharma also used Ram Jankijee as an authority for their decision to recognize the juridical personality (and concomitant indestructability) of Asthan Rām Janmabhūmi. Sharma asserts that:

the place [Asthan Janmabhūmi] according to the Smirit [sic] have to be considered as a deity like Agni and Vayu being worshipped. They are shapeless and formless but they attain the divinity. If the public go for worship and consider that there is divine presence then it is temple which has already been held by Hon'ble apex court in … Ram Jankijee.³⁰

Sharma’s ‘smirit’ source is, of course, Raghunandana’s verse from the Devapratiṣṭhātattva (as interpreted in Bhupati and Ram Jankijee).³¹ For Sharma, Ram Jankijee ensures that Hindu belief and practice (protected under Articles 25 & 26 of the constitution) allows for a deity to take on an endless array of forms – with the legal consequence, in the case of the Asthan Rām Janmabhūmi, that ‘the plaintiff no. 2 is the deity and public is going for worship from times immemorial with a feeling of presence of deity divine … [and] if the temple is destroyed … the place will remain a juridical person.’³² Consequently, Sharma decrees that Asthan Rām Janmabhūmi, is, and always was, the owner of ‘the entire premises of Sri Ram Janm Bhumi at Ayodhya as described and delineated in annexure nos. 1 and 2 of the plaint.’³³

Justice Agarwal provides more juridical nuance than Justice Sharma, but he nevertheless endorses a capacious view of the juridical personality of Hindu deities. Agarwal notes that the advocates for the deities in suit 5, ‘submit that in Hindu religious scriptures the concept of ‘Deity’ extremely vary … [including] a place or object, i.e., natural things like river, tree, stone, mountain, mound or even a part of earth connected with divine activities.’³⁴ In assessing ‘whether a place by itself can be a Deity and be conferred status of legal person in the light of principles of Hindu Law’, Agarwal quotes a vast array of Dharmaśāstric sources – and Mukherjea’s Hindu Law of Religious and Charitable Trusts – at length.³⁵ In answering this question in the affirmative, Agarwal zeroes in on Raghunandana’s verse and invokes a series of cases wherein Raghunandana’s logic was used by the courts to advance the juridical view that ‘a place which creates a sense of reverence in the belief that God resides there or an edifice devoted to divine worship is a [Hindu] temple.’³⁶

While Ratna Kapur indicts Agarwal’s endorsement of the Hindu right’s ‘robust and substantive claim to freedom of religion in their own interests’, and Gopinath Arunima (and Kalyani Ramnatha) question the Dharmaśāstric coherence of treating land as a deity, I want to foreground how the Allahabad High Court’s willingness to recognize a unique, legally indestructible instantiation of a Hindu deity – and Hindu majoritarian arguments for the existence of such a deity – involve appeals to Dharmaśāstric sources as interpreted by the courts (Arunima 2010; Kapur 2014).³⁷ Kapur and I share, I think, Saumya Saxena’s broader argument that Hindu majoritarianism is enabled by, and transforms secularism rather than being an expression against it (Saxena 2018).³⁸

For Agarwal and Sharma of the Allahabad High Court, the notion that a ‘formless’ Hindu deity might take virtually any form ‘for the benefit of the worshippers’ supported, ostensibly, by the Supreme Court in Ram Jankijee³⁹, enables them to endorse the argument that, as the disputed site ‘is believed to be the birthplace of Lord Rama by Hindus for time immemorial and they visit it to worship and Darshan … [and] this satisfies the requirement of a “deity.”’⁴⁰ Agarwal’s conclusion, that ‘plaintiffs 1 and 2 are juridical person [sic]’ by virtue of ‘the fact that they are being visited as a matter of right by Hindus for Darshan and worship believing the Place as [the] birthplace of Lord Rama, and the idols being the image of Supreme Being having divine powers’, asserts that ‘this faith and belief cannot be negatived on the challenge made by those who have no such belief or faith’ and, consequently expands the scope of a Hindu deity dramatically.⁴¹ For Agarwal, Raghunandana’s maxim, as supported in a secular judicial record, enable the recognition of a unique, essential Hindu deity – a spot of land – and to argue as it ‘is a place of peculiar and unique significance for [Hindus]’, if it ‘is allowed to extinguish/extinct by application of a provision of statutes’, then, ‘the fundamental right of practicing religion’ will be ‘denied to the Hindus permanently.’⁴² Secular provisions supporting religious freedom become, in this view, a tactical tool for judicial recognition of majoritarian land claims.

2.2. Raghunandana reined in: the juridical personality of Rām Lalla Virajman

In 2019, the Supreme Court rejected the legal personality of Asthan Rām Janmabhūmi (and the Allahabad High Court’s endorsement of a juridical theory in which Hindu belief could create a near-limitless array of juridical persons) on three grounds: (1) that the legal deification of land on the basis of mere belief is not countenanced by judicial precedent; (2) that the legal deification of land would create a class of property that would frustrate the operation of civil law; (3) that affording the Hindu community a unique method of acquiring property on the basis of belief would violate the secular principles of the Indian Constitution. Nevertheless, the Supreme Court recognized Rām Virajman as a juridical person, on the basis of longstanding Hindu belief, and, despite the absence of a deed of dedication, a legal guardian (shebait), or a temple structure, characterized this deity as a pious purpose: the right of Hindus to worship Rām at Ayodhya.⁴³ The result is a tautological deity: Rām Virajman is the pious, constitutionally protected purpose of Hindus to worship Rām Virajman at the Janmabhūmi. In the Supreme Court’s analysis, the relief sought by Gopal Visharad in suit no. 1 of 1989: ‘a declaration … to allow the plaintiff to offer prayers in accordance with the rites and tenets of his religion (‘Sanatan Dharm’) at the ‘main Janmabhumi’ near the idols, within the inner courtyard, is subsumed, ontologically and legally, into Rām Virajman.⁴⁴

The Supreme Court notes that the counsel for the deities, ‘submitted that in Hindu Law the concept of a juridical person is not limited to idols … [and that because the land itself] is an object of worship … and prayer is offered to it … this court must confer juristic personality on the land represented as Ram Janmasthan.’⁴⁵ This contention is supported by an appeal to Raghunandana, again, as enshrined in previous judicial precedent, that, ‘God is shapeless and formless and there is no requirement that the object of worship be an idol.’⁴⁶ The deities’ counsel asserted that, ‘there is a distinction between: (i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land being the property of a deity’ and that, as the land ‘is itself the deity’, consequently, ‘questions of possession, joint-possession or adverse possession’ would be rendered ‘infructuous’.⁴⁷ The Court notes that by ‘invoking the argument of a “juristic person” the plaintiffs have urged this Court to create an additional ground for the conferral of legal personality – the faith and belief of the devotees’ and that ‘amongst the ensemble of arguments advanced before this Court, this innovative legal claim is at the heart of the present dispute’.⁴⁸

Of course, the ‘recognition of the religious significance of a place as a place of public worship is conceptually distinct from recognising the place as a juristic person’ and the court goes to great lengths to frame the ‘wealth of precedent’ – involving variations on a theme of Raghunandana’s verse – cited in support of the legal personhood of Asthan Rām Janmabhūmi, as examples of the former, rather than the latter, legal conclusion.⁴⁹ After working through these precedents, the Court concludes that, ‘the counsel have selectively relied on extracts to support the contention that the disputed site is a juridical person’.⁵⁰ In this view, judicial precedent’s Raghunanda-based recognition on the divinity of ‘natural formations, animals and can even … everyday objects which have significance in a worshipper‘s life’ must be seen from a spiritual, rather than a legal perspective.⁵¹ In the absent of a express deed of dedication – which delineates the pious purpose of a testator, the Court argues, that:

each conferment of legal personality … must be judged on the facts of the case and [not] every manifestation of the Supreme Being results in the creation of a legal person.⁵²

The second reason that the Supreme Court rejected the legal personality of Asthan Rām Janmabhūmi is more practical: the ‘conferral of “absolute title” (resulting from the conferral of legal personality on land) would … render the very concept of title meaningless.’⁵³ Rām’s counsel’s desired legal outcome for the deification of the land in question was to ensure that, as res nullius, it would be immunized from any historical dispossession (by the construction of the Mosque) or legal process, but this move would also run contrary to the practical legal purpose of affording legal personhood to Hindu deities: creating a site of jural relations so that one could file suit in relation to land and other properties dedicated to a deity. Oddly, while the Court argues that, with regard to Asthan Rām Janmabhūmi, because of the absence of an ‘act of dedication … the question of whom the property was dedicated to does not arise and … the need to recognise the pious purpose behind the dedication … as a legal person also does not arise’, the court does recognize Rām Virajman as a pious purpose despite the absence of a deed of dedication.⁵⁴ Rahul Govind argues that this reflects the Court’s ‘inconsistency between the … exposition of the concept of juristic personality and its application of the same in this particular case.’⁵⁵ The Supreme Court’s justification of this inconsistency, however, shares a common theme with the Allahabad High Court’s conferral of juristic personality on Astham Ram Janmabhūmi: an expansion of the spirit of Raghunandana’s maxim on the basis of Hindus’ constitutionally protected right to worship. Before the Ayodhya verdict, the courts invoked Raghunandana in their conferral of legal personhood on natural phenomena, religious texts, and other non-śāstric religious phenomena. Afterward, the Ayodhya verdict added constitutional rights to Raghunandana’s remit.

These first two reasons for rejecting the legal personality of Asthan Rām Janmabhūmi feel somewhat strained and the third reason – the preservation of secularism – feels more persuasive. While Justice Sharma and Agarwal of the Allahabad High Court framed the recognition of Asthan Rām Janmabhūmi as the defense of constitutional freedoms of religion, the Supreme Court takes the view that the rejection of this juridical person ‘touches upon the heart of our constitutional commitment to secularism.’⁵⁶ A major issue with this ‘novel extension of the law applicable to Hindu religious endowments’ is that this ‘method of worship on the basis of which a proprietary claim may be sustained’ is available only to the Hindu community.⁵⁷ The crux of the constitutional conundrum is that although ‘religious diversity … requires the protection of diverse methods of offering worship’, nevertheless, accepting that a ‘method of worship unique to one religion should result in the conferral of an absolute title … over parties from another religion in an adjudication over civil property claims’ would violate the Constitution’s promise of equality of all faiths and render ownership a ‘question of which community‘s faith is stronger.’⁵⁸

What about Rām Virajman, the tutelary deity of the contested site, who was recognized (and whose case was granted) by all three judges of the Allahabad High Court and by the Supreme Court? If he is not the land, what, exactly, is he? Rām Virajman first entered the legal record in Deoki Agarwal’s plaint of 1989:

According to the faith of the devotees of BHAGVAN SRI RAMA LALA … the spirit of BHAGWAN SRI RAMA … resides at Asthan Sri Rama Janma Bhumi and can be experienced by those who pray there … That Spirit is the Deity.⁵⁹

Like Asthan Rām Janmabhūmi, the legal personality of Rām Virajman has to be inferred on the basis of faith, belief, and worship rather than by deed. Here, then, the Supreme Court’s averment to basing its ruling on facts rather than faith trips over itself. For the Supreme Court, as for the Allahabad High Court, Rām Virajman is the pious purpose of worshiping Rām at Ayodhya: ‘Hindu devotees of Lord Ram hold a … long standing … belief in … offering prayer to Lord Ram at the site they believe to be his birthplace.’⁶⁰ For Rām Virajman belief and worship are sufficient for the court to recognize his legal personality:

In the present case, the first plaintiff has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent [of] any express dedication or trust … At the heart of the present dispute are questions pertaining to the rightful manager of the deity and the access of the devotees of Lord Ram to the idols.⁶¹

One crucial distinction between the two deities is that the existence of Rām Virajman, as a pious purpose rather than a specific parcel of land, does not extinguish competing property rights, a priori and could potentially be relocated without being destroyed. Nevertheless, the legal principles and precedents that support the recognition of this deity in the absence of an express trust or deed – Ram Jankijee, Bhupati, Yogendra Nath, and Mukherjea’s Hindu Law – are the same as those cited in support of Asthan Rām Janmabhūmi and they share, of course, a core reliance on the hugely influential verse from Raghunandana’s Devapratiṣṭhātattva. In fact, the Supreme Court argues that as ‘the right [that was] asserted’ by Gopal Singh Visharad in 1950 was ‘a right in common with and for the benefit of other Hindu devotees to pray at the disputed property’:

The remaining issues in contention in Suit 1 are connected with the ones argued in Suit 5. The relief sought in Suit 5 will have a direct impact on the plaintiff’s right to pray as claimed in Suit 1. Accordingly, we will deal with the contentions raised in Suit 1 at the time of addressing the contentions in Suit 5.⁶²

Gopal Visharad (and Hindu community’s) abstract right to worship is unable to own property, but it is entitled to legal protection under Article 25 of the Indian Constitution. As the Court frames the right for Hindus to pray to Rām at Ayodhya as a juridical person, the Court’s decision to award the title to the disputed site to Rām Virajman affirms ‘the right of the plaintiff in Suit 1 to worship at the disputed property.’⁶³ Divinizing a constitutional right enables a series of legal debates about precisely what property rights Rām might enjoy. In fact, the counsel for the Sunni Central Board of Waqfs, Rajeev Dhavan, accepted Rām Virajman as the legal personification of the Hindu community’s right to worship, but ‘envisaged [this] only [as] an easementary right to worship for the Hindu devotees to pray and, for that purpose, to gain access to the courtyard.’⁶⁴ In short, the Courts affirmed that Rām Virajman is the juridical representation of an abstract, constitutionally protected, right to worship. For the benefit of Rām’s worshippers, the court granted legal recognition to a bodiless, attributeless being. Would Raghunandana be pleased to see his venerable defense of image worship redeployed by a modern court to justify the property rights of a Hindu deity? Or, would he be horrified that Rām Virajman represents the rights of people of all castes without any regard to the norms of varṇa? Perhaps both, but therein lies my broader point: references to Dharmaśāstric maxims have been, and will likely be, an essential point of reference for judges adjudicating cases involving Hindu law.

3. Conclusion – Kashi-Mathura Baaqi Hain?

This article has shown that, although the 2010 Allahabad High Court and the 2019 Supreme Court’s Ayodhya verdicts differ substantially concerning the legal personality of Rām Virajman and Asthan Rām Janmabhūmi, they nevertheless share distinctive common features: both Courts navigate the tension between the legal recognition of Hindu deities and the ownership of the disputed site by appealing to a mixture of judicial precedent and constitutional rights to freedom of religion. Questioning what counts as a deity, in the Courts’ opinion, is inseparable from determining who owns the disputed land. These issues revolve, in turn, around wider issues concerning where the courts must look in order to discover the limits of the juridical personality of Hindu deities. Do Articles 25 and 26 of the Indian Constitution ensure, as the Allahabad High Court ruled, that the courts must privilege Sanskrit sources over judicial precedents? Or, rather, as the Supreme Court ruled, must judicial precedent supplant Dharmaśāstra (especially if the latter is encapsulated in the former)?

Although the Supreme Court’s reined in the Dharmaśāstric extravagance of the Allahabad High Court’s 2010 verdict, both courts viewed Rām Virajman as the legal personification of a Hindu belief in the efficacy of worship at the disputed site in Ayodhya. Once the Supreme Court recognized Hindu belief as a juridical person, Rām Virajman, they clothed that person, despite the absence of any deed of dedication or of a shebait, in the legal vestments of a Hindu religious endowment and re-read the history of the Ayodhya dispute as a history of the guardianship of Rām at the disputed site. In this fiduciary history, the state (beginning with the Union of India’s direct legal antecedent, the British East India Company) had protected Rām Virajman’s interests by permitting Hindus to worship at the disputed site and, even after the attachment of the dispute premises in 1949 (and the destruction of the Mosque in 1992) had ensured the regular worship of Rām Virajman.

Although the Supreme Court, argued that the ‘law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course which history has taken’, this is precisely what has happened subsequently. Faith-based applications of Sanskrit jurisprudence have been employed to expand the Hindu community’s constitutionally-protected rights to freedom of religion into a legal weapon with which to assert control over India’s contested geography and this lies at the heart of lawsuits filed in the name of deities at Mathurā and Vārāṇasī. Although the Supreme Court invoked the Places of Worship (Special Provisions) Act 1991, which imposes ‘a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947, when India achieved independence from colonial rule’ as a bar to these suits, the Act has recently become the target of public interest litigation.⁶⁵

On 20th May, 2022, a judge of the district court in Mathura ruled that a lawsuit, filed by a ‘next friend’ on behalf of two deities, ‘Bhagwan Shrikrishna Virajman’ and ‘Asthan Shrikrishna Janam Bhoomi’ (note the remarkable similarity to divine litigants in the Ayodhya case) for possession of the disputed site (occurred in part by the Shahi Idgah Mosque), was not barred by the Places of Worship Act.⁶⁶ On April 9th, 2021, a senior judge of the Vārāṇasī Court ordered the ASI to perform a survey of the Kāśīviśvanātha/Jñān Vāpi Mosque site in response to a suit filed on behalf of the deity Lord Vishweshvar Kashi Vishwanath by a next friend.⁶⁷ In this case, advocates for the plaintiff deity aver that, as the location of an eternal, self-revealed (svayambhū) Śivaliṅga, the destruction of the physical temple could not result in the termination of the deity’s ownership over the disputed site.⁶⁸

Far from being a resolved matter, communal conflict over contested sites has increased and, invariably, has taken on the language of the Courts – of deities as legal persons, of broken fiduciary relations, of historical claims about worship, and about the potential legislative obstacles to a Hindutva agenda. We can expect that, in the future, Hindu majoritarian claims to India’s sacred geography will be tied, intimately, with legal debates about the juridical personality of Hindu deities in case law and in Sanskrit jurisprudence.

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This work was supported by the British Academy.

Notes on contributors

Christopher T. Fleming

Christopher T. Fleming (DPhil, Balliol College, Oxford, 2018), is a law student at Harris Manchester College, and an Associate Member of the Faculty of Asian and Middle-Eastern Studies (AMES), Oxford. Previously, he was a British Academy Postdoctoral Fellow at AMES and the Bowra Junior Research Fellow at Wadham College, Oxford. Fleming’s research examines Indian Legal History (Property and Trusts), Sanskrit Jurisprudence (Dharmaśāstra), and the Mahābhārata. His publications include Ownership and Inheritance in Sanskrit Jurisprudence (OUP 2020), and Science and Society in the Sanskrit World (Brill 2023) – edited with Vishal Sharma, Toke Knudsen, and AJ Misra.

Notes

1 Visharad v. Ahmad, O.O.S., No. 1 of 1989, All. H.C., 4 (2010) – hereafter ‘AHC.’ M. Siddiq v. Suresh Das 1 SCC 1 (2020) – hereafter ‘SC’.

2 SC ¶1–3, pp. 6–7.

3 Ibid., ¶805, pp. 925–926.

4 Ibid., ¶800, pp. 922–923.

5 Ibid., ¶801, p. 923. Also see ¶653–676, pp. 771–790 where the Court recounts ‘Justice Equity and Good Conscience’ as a juridical paradigm in India (from Regulation 60 of Warren Hastings’ 1781 Regulations for the Administration of Justice to Article 142(1) of Constitution). The Court relies on J. Duncan Derrett (1963a).

6 SC ¶432 p. 485.; & (Khan) pp. 9–20. Civil Appeal No. 27/1885.

See, for example, Roger Friedland, and Richard Hecht (1998); Sheetal Parikh (2005): Peter van der Veer 1994; and Sheldon Pollock (1993).

7 For a comprehensive summary of the Allahabad verdict, see, Aparna Chandra (2010); Kalyani Ramnath (2011); and Ratna Kapur (2014). Analyses of the 2019 verdict include: Shashank Rai, Shabarna Choudhury & Sai Snigdha Kantamneni (2020); Sarath N. Mathew (2020); and Amit Bindal (2020).

8 My current monograph project, under contract with Oxford University Press, Equity and Trusts in Sanskrit Jurisprudence aims to provide a standard work of reference of this somewhat abstruse branch of jurisprudence.

9 Richard Lariviere (1989, 757).

10 See Donald Davis (2020: pp. 656–657), where he discusses Karl Llewellyn (1959).

11 C.J. Fuller (1988:, 246).

12 For the essential practices test in relation to Hindu temples, see Deepa Das Acevedo (2018). An excellent overview of ‘religion’ as a legal category and its problematic role in colonial and post-colonial Anglo-Hindu and Anglo-Islamic jurisprudence, see Geetanjali Srikantan (2020). For the colonial legacy of the relationship between theology and property in the modern law of Hindu religious endowments, see Geetanjali Srikantan (2017).

13 The standard works of reference on the law of Hindu religious endowments are B.K. Mukherjea (2016); J. Duncan Derrett, (1963b); and Rajeev Dhavan (1978). For more recent, ethnographic studies of Hindu deities as juristic persons, see the work of Daniela Berti.

14 For constitutional questions involved in Supreme Court Decisions related to religious endowments, see Das Acevedo (2018, 2016b). Article 25 protects the freedom to worship, and Article 26 protects communities’ right to endow and to maintain religious institutions (temples, mosques, etc). https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2025; https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2026.

15 Justice Sharma and Agarwal endorsed this view, while Justice Khan’s judgment varies considerably from those of his colleagues on the question of Hindu trusts.

16 Article 25 protects the freedom to worship, and Article 26 protects communities’ right to endow and to maintain religious institutions (temples, mosques, etc). https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2025 https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2026 For the freedom of religion in post-colonial India, see N. A. Subramanian (1964).

17 SC, ¶201 p. 221.

18 SC ¶129 pp. 166–167.

19 For the history of the Nirmohi Akhara at Ayodhya, see Krishna Jha (2012).

20 SC ¶83, pp., 123–124. For the Act, see, https://www.indiacode.nic.in/bitstream/123456789/1922/1/a1991-42.pdf For the history of the Kṛṣṇajanmasthan Temple, Jñān Vāpi Mosque/ Kāśīviśvanātha Temple, and other contested former temple sites, see Sunil Kumar (2008); and Richard Eaton (2000). For contemporary cases involving the Kāśīviśvanātha Temple, see Vera Lazaretti (2023). For cases involving the Kṛṣṇajanmasthan Temple, see Nick Tackes (2023).

21 From the Devapratiṣṭhātattva, cited by Mukherjea in The Hindu Law of Religious and Charitable Trusts (2nd Edition), 27: cinmayasyādvitīyasya niṣkalasyāśarīriṇaḥ / upāsakānāṃ kāryārthaṃ brahmaṇo rūpakalpanā // See AHC (Agarwal) ¶1721 p. 1852 & (Sharma, on Suit 5) p. 50 of his judgement on suit 5. For idols (mūrtis) in classical Hindu theology, see Sthaneshwar Timalsina (2013). This verse also appears in Raghunandana’s Ekādaśītattva.

The phrase is lifted from the Rāmāyaṇatāpanīyopaniṣad (1.7), a Vaiṣṇava Upaniṣad on the Artharvaveda dated, variously, between the 11th and 16th Centuries, C.E. For the text, see Albrecht Weber (1864). Kamalākarabhaṭṭa (active 1610–1640) quotes a verse (1.13) from the same text in the Pūrtakamalāra (Bhandarkar Oriental Research Institute Ms. No 838) fol. 56a: rāmatāpanīye: sarvagasthasya devasya vigraho ya[n]trakalpanā // vinā maṅtreṇa cet pūjā devatā na prasīdati //

22 For a similar verse from the Viṣṇudharmottarapurāṇa, along with an analysis of the reception of image worship in brāhmaṇical treatises, see Phyllis Granoff (2006)

23 For an analysis of the evolution of the jurisprudence of the juridical personality of Hindu deities, see Ritu Birla (2009). For the role of Dharmaśāstra more generally in the creation of Anglo-Hindu law, see Christopher Fleming (2020), esp. chapter 4, ‘Anglo-Hindu Schools of Law.’

24 Bhupati Nath Smrititirtha v Ram Lal Maitra (ILR 1909 37 Cal 128): Mookerjee, ¶61.

25 Some of the authorities on the matter are, Yogendra Nath Naskar v CIT, Calcutta (1969) 1 SCC 555, Ram Janki Deity Vs. State of Bihar 1999 (5) SCC, Sri Sabhanayagar Temple, Chidambaram v State of Tamil Nadu (2009) 4 CTC 801, Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP (1997) 4 SCC 606, and Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass (2000) 4 SCC 146 (in Shiromani, the court considered the juristic personality of the Guru Granth Sahib).

26 AHC (Sharma, Suit 5) p. 61.

27 SC ¶130 p. 167.

28 Ibid., ¶130 p. 167 See note 22, above.

29 SC ¶165 p. 195. (1999) 5 SCC 50 ¶17 (citing Mukherjea’s Hindu Law of Religious and Charitable Trusts, 5th ed.).

30 AHC (Sharma, Suit 5) 173.

31 Ibid., pp. 49–54, 73–75, 86–87, (Sharma cites G.C. Sarkar Sastri's, Hindu Law 8th ed.)

32 Ibid., 173.

33 Ibid., 174.

34 AHC (Agarwal) ¶1693 p.1807.

35 Ibid., ¶1710 p. 1843 & ¶1721 p. 1852.

36 Ibid., ¶1736–1748 pp. 1860–1864. Agarwal cites T.R.K. Ramaswami Servai Vs. H.R.E. Madras ILR 1950 Mad 799; Venkataramana Moorthy Vs. Sri Rama Mandhiram (1964) 2 An.WR 457; T.V. Durairajulu Naidu Vs. Commissioner; and Mukherjea's Hindu Law of Religious and Charitable Trusts.

37 Kapur (2014) p. 362. Despite her excellent analysis of the constitutional issues involved in the 2010 judgment, Kapur’s analysis of the plaintiff deities is limited to footnotes 3 & 141–142 (pp. 306–307, & 338). Kapur notes that Agarwal accepts the contention that faith is sufficient to deify a location (pp. 343–346) but she does not trace the logic whereby Agarwal and Sharma arrived at this conclusion. Also see Gopinath Arunima (2010). Arunima’s argument, that the 2010 judgment involves an ‘elision’ of devasthanam (a holy place) with a janmasthanam (a birthplace) is cited in Ramnath (2011), p. 11, fn 26 with the following gloss: ‘The former is a holy place which may be treated as a deity, but the latter being treated as a deity is unprecedented in Hindu law jurisprudence.’ Neither of these are legible categories in the jurisprudence of the Ayodhya dispute, where the issue is between treating land as a deity or treating the right to worship at a particular location as a deity.

38 See Saumya Saxena (2018). Also see Kapur (2023).

39 AHC (Agarwal) ¶1758 p. 1870 & ¶1802 p. 1904. See SC ¶165 p. 195 & (1999) 5 SCC 50 ¶16: ‘The observations of the Division Bench has been in our view true to the Shastras  … If the people believe in the temples’ religious efficacy no other requirement exists as regards other areas … Hindus have in Shastras ‘Agni’ Devta; ‘Vayu’ Devta these deities are shapeless and formless but for every ritual Hindus offer their oblations before the deity. The Ahuti to the deity is the ultimate … It is not a particular image which is a juridical person but it is a particular bent of mind which consecrate the image.’

40 AHC (Agarwal) ¶1889 p. 1975. The specific ‘belief’ in question was framed as: ‘that the fort of King Dashrath situated at Ayodhya included the part of the building wherein Lord Rama was born according to Hindu belief and the disputed area covered that house … ’.

41 Ibid., ¶1918 p. 2006.

42 Ibid., ¶2722 p. 2615. Agarwal makes the constitutional issue clear at ¶2714 pp. 2616–2617: ‘the Government will have the effect of depriving the worshippers their right of worship under Article 25 of the Constitution and such an acquisition even under the statutory provision cannot be permitted … This will be infringing the fundamental right under Article 25 of the Constitution.’

43 SC ¶129 p. 166. For a critique of this apparent contradiction in the Supreme Court’s decision to recognize the legal personality of Rām Lalla Virajman, see Rahul Govind (2021).

44 Ibid., ¶13 p. 12.

45 Ibid., ¶130 p. 167.

46 Ibid., ¶130 p. 167.

47 Ibid., ¶1301p.167. This finding would render the destruction of an earlier temple irrelevant: ‘Mr Vaidyanathan submitted that the disputed property, being a legal person, is res nullius. Since the disputed property is a juristic person, it is not alienable. It was contended that land which is res nullius or res extra commercium cannot be acquired by adverse possession. It was urged that even if the image of the idol is broken, a deity is immortal and thus, the construction of the mosque on the land did not take away from its character as a deity.’

48 Ibid., ¶161 p. 193.

49 Ibid., ¶136 p. 172.

50 Ibid., ¶137 p. 173.

51 Ibid., ¶185 pp. 210–211.

52 Ibid., ¶185 pp. 210–211.

53 Ibid., ¶174 p. 201.

54 Ibid., ¶174 p. 201.

55 Govind (2021), 174.

56 Ibid., ¶202 p. 222 For discussions of Indian Secularism in a legal context, see Deepa Das Acevedo (2013); and Ronojoy Sen (2020).

57 Ibid., ¶202 p. 222.

58 Ibid., ¶203–205 pp. 222–224.

59 AHC (Sharma, Suit 5) p. 11.

60 SC ¶126 p. 164.

61 Ibid., ¶129 p. 166.

62 Ibid., ¶215–216 pp. 242–244.

63 Ibid., ¶805 p. 927.

64 Ibid., ¶222 p. 249.

65 SC ¶78 p. 116. Section 5 of the act expressly exempts the Ayodhya dispute: Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya. https://theprint.in/opinion/politically-correct/did-modi-give-hindus-closure-a-pil-against-the-places-of-worship-act-will-decide-the-answer/621753/; https://timesofindia.indiatimes.com/india/sc-agrees-to-examine-validity-of-places-of-worship-act/articleshow/81463934.cms.

66 Civil Revision No. 02/2021 Bhagwan Shrikrishna Virajman etc. Vs. U.P. Sunni Central Waqf Board etc,.

67 https://theprint.in/judiciary/varanasi-court-orders-asi-probe-to-settle-kashi-vishwanath-temple-gyanvapi-mosque-dispute/636829/.

68 The case is ongoing. See, for example, https://www.firstpost.com/india/kashi-gyanvapi-dispute-case-next-friend-of-lord-vishweshwar-says-temple-was-destroyed-but-its-religious-character-didnt-change-10549441.html; https://www.livelaw.in/news-updates/vishweshwar-jyotirlinga-is-situated-below-gyanvapi-mosque-which-is-self-manifested-lords-next-friend-argues-in-allahabad-hc-199695; and https://www.livelaw.in/news-updates/gyanvapi-lord-vishweshwara-through-next-friend-move-varanasi-court-seeking-impleadment-in-suit-by-hindu-worshippers-200427.